A federal judge ruled on August 17, 2006 (in the case of ACLU v.
NSA), that the program violates the FISA statute enacted by Congress as
well as the First
and Fourth
Amendments of the United States
Constitution. She ordered a stop to the eavesdropping without warrants. [2][3]
However, the parties to the suit agreed that the program could continue until a
hearing on the matter on September 7.[4]

In addition to the legality of the program, the controversy extends to
questions of the duties of Congress, the
press's role in exposing a classified
program, the legality of telecommunications
companies cooperating with the program, the apparent contradiction to PresidentGeorge W. Bush's earlier
statement that the government
did not wiretap without "getting a court order before we do so"
[4]
and the potential of the program for abuse.

The presidential authorization that created the program is classified and
only select members of the Congressional Intelligence committees and leadership
were (partially) briefed. It is unclear whether the program began before[5]
or after the September 11,
2001 attacks. The program was unknown to the American public until a
December 2005 report in The New York
Times, although the paper had learned of the program approximately
fourteen months earlier (before the 2004
Election).[8][6]
The administration publicly confirmed the New York Times report that revealed
the National Security Agency is wiretapping Americans' overseas phone calls to
or from phone numbers or people the government suspects might be connected to
terrorism. [9]

After an exchange
of letters in June 2006 between Senate
Judiciary Committee Chairman Arlen Specter (R-PA) and
Vice
PresidentDick Cheney, the committee
is considering Specter's bill putting the NSA program under the FISA court and
granting retroactive amnesty for warrantless surveillance conducted under
presidential authority.[7]
It is also considering legislation sponsored by Senator Mike DeWine (R-OH), a member
of the judiciary and intelligence panels, that may provide a legal foundation
for the surveillance program. A third piece of legislation affecting the NSA
program, sponsored by Senator Charles Schumer (D-NY),
has also been proposed. [10]
If the courts continue to hold that the program is not only illegal but also
unconstitutional, then Congress would likely be unable to authorize it. However,
some legal scholars[11]
who believe the program to be illegal nonetheless argue that it is likely
consistent with the Constitution and therefore amenable to Congressional
action.

Background

Soon after the September 11,
2001 attacks (or perhaps earlier[8]),
U.S. President George W. Bush issued an
executive order that
authorized the National Security
Agency (NSA) to conduct surveillance of certain telephone calls of a person in the
United States without obtaining a warrant from a FISA court either before or
after the surveillance. The complete details of this authorization are not
known, but it is believed to cover telephone calls involving a person suspected
of having links to terrorist organizations such as al-Qaeda or its affiliates and
with one party to the call outside the United States. The legality
and extent of this authorization is the core of the controversy. That the NSA
maintained electronic surveillance on communications between persons in the
United States and suspected terrorists outside the United States without
obtaining a warrant was affirmed by President Bush after it was revealed in the
press. On May
22, 2006, it was
reported by Seymour Hersh and Wired News
that under this authority, the NSA had installed monitoring and interception
supercomputers within the routing hubs of almost all major US telecoms companies
capable of intercepting and monitoring a large proportion of all domestic and
international telephone and Internet connections, and had
used this to perform mass eavesdropping and
order police investigations of tens of thousands of ordinary Americans without
judicial warrants. [12][13]

Public knowledge of this program promptly led to a major national controversy
over such issues as:

The administration also adds that the program is legal under Title II of the
USA PATRIOT Act entitled
Enhanced
Surveillance Procedures,[citation needed]
although it is not relying upon the domestic law enforcement provisions of the
PATRIOT Act for authorization of any of the NSA program activities.[citation needed]
The President had said prior to this, that Americans' civil liberties were being
protected and that purely domestic wiretapping was being conducted pursuant to
warrants under applicable law, including the Patriot Act.[9]
However, it seems necessary to take such statements cautiously, given that the
Administration considers its current program also to be conducted pursuant to
applicable law; the meaning that might be attributed to such a statement is not
necessarily the meaning that would be attributed in the light of more detailed
information.

According to one source, historically (prior to the above mass
expansion):

"[O]fficials familiar with it say the N.S.A. eavesdrops without
warrants on up to 500 people in the United States at any given time. The list
changes as some names are added and others dropped, so the number monitored in
this country may have reached into the thousands since the program began,
several officials said. Overseas, about 5,000 to 7,000 people suspected of
terrorist ties are monitored at one time, according to those officials."[10]

History of wartime warrantless surveillence in the USA

The administration has compared the NSA warrantless surveillance program with
historical wartime warrantless searches in the United States, going back to
George Washington.[16]
Critics have pointed out that Washington's surveillance occurred before the
existence of the U.S. Constitution, and the other historical precedents cited by
the administration were before the passage of FISA, and therefore did not
directly contravene federal law. [17]
Abuses of electronic surveillance by the federal government led to reform
legislation in the 1970's.[18]
Advancing technology began to present questions not directly addressed by the
legislation as early as 1985.[19]

Executive orders by
previous administrations including Clinton's and Carter's authorized the
attorneys general to exercise authority with respect to both options under FISA.
[20][21]
These legal and constitutional orders were exercises of executive power under
Article II consistent with FISA. In Clinton's executive order, he authorizes his
attorney general "[pursuant] to section 302(a)(1)" to conduct physical searches
without court order "if the Attorney General makes the certifications required
by that section".

Legal issues

The debate surrounding President Bush's authorization of warrantless
surveillance is principally about checks and balances
and separation of
powers. Some lawyers believe the ultimate issue of legality is largely
unknowable until the full details of the NSA surveillance operation are known;
others, like Harold Koh, dean of Yale
Law School, Suzanne
Spaulding, former general counsel for the Intelligence Committees of the
House and Senate, and former Counsel to the President John Dean, point out that FISA
clearly makes the wiretapping illegal[22],
and that the president's own admissions already constitute sufficient evidence
of a violation of the Constitution and the criminal penalties of FISA, without
requiring further factual evidence; and still others, like John Schmidt, former
Associate Attorney General, [23]Douglas
Kmiec, chair of Pepperdine Law
School, and John Eastman, Chapman Law Professor and Director of the Claremont Institute
Center for Constitutional Jurisprudence, claim either that Congress implicitly
authorized an exemption to FISA or that FISA cannot bind the president in a time
of war (although FISA explicitly states that it applies in a modified form in
wartime); see "Third
party legal analysis" below. The American Bar
Association, of which more than half of all lawyers in the nation are
members, expressly condemns the program as a blatant violation of the law.

As a general rule, the Supreme Court has
consistently held since Katz v. United
States (1967), that the monitoring and recording of private conversations
constitutes an "unreasonable search and seizure" barred by the Fourth
Amendment.

There are five main areas of legal issue: FISA and FISA oversight issues,
constitutionality issues, the extent of authority created by the Authorization
of Use of Military Force (AUMF) by Congress, issues relating to the program's
classified nature, and admissibility of evidence obtained from the
program.

FISA issues

The 1978 Foreign
Intelligence Surveillance Act defines the Justice Department's authority to
conduct physical and electronic surveillance for "foreign intelligence
information". FISA provides two mechanisms to perform searches. First, FISA
authorizes the Justice Department to obtain warrants from the secret Foreign
Intelligence Surveillance Court (FISC) up to 72 hours after the beginning of
the eavesdropping. In this case, FISA authorizes a FISC judge to grant an
application for the electronic surveillance if "there is probable cause to believe
that… the target of the electronic surveillance is a foreign power or an agent
of a foreign power." 50 U.S.C. §1805(a)(3). Second, FISA permits the President
to authorize the Justice Department to conduct foreign intelligence surveillance
for up to one year without a court order. 50 U.S.C. §1802(a)(1). [24]
In this situation, the surveillance must be directed solely at communications
used exclusively by foreign powers; United States citizens can be considered
agents of a foreign power, but not solely upon the basis of activities protected
by the first amendment to the Constitution of the United States. 50 U.S.C.
§1805(a)(3). FISA provides for both criminal and civil liability for intentional
electronic surveillance under color of law but not
authorized by statute. FISA defines a "foreign power" as a foreign government,
any faction(s) or foreign governments not substantially composed of US persons,
and any entity directed or controlled by a foreign government. FISA limits its
use against US persons who are citizens, foreign resident aliens of US
corporations. Finally, FISA applies to surveillance whose significant purpose
must be for gathering foreign intelligence information, which is information
necessary to protect against actual or potential grave attack, sabotage or international terrorism.

Sufficiency of FISA

On the December 19, 2005, U.S. Dept. of Justice
Assistant Attorney for Legislative Affairs, General William Moschella, wrote a
letter to the Chairs and Ranking Members of the U.S. Senate and House of
Representatives, defending the NSA program:

As explained above. the President determined that it was necessary
following September 11 to create an
early warning detection system. FISA could not have provided the speed and
agility required for the early warning detection system. In addition, any
legislative change, other than the AUMF, that the President might have sought
specifically to create such an early warning system would have been public and
would have tipped off our enemies concerning our intelligence limitations and
capabilities. Nevertheless, I want to stress that the United States makes full
use of FISA to address the terrorist threat, and FISA has proven to be a very
important tool, especially in longer-term investigations. In addition, the
United States is constantly assessing all available legal options, taking full
advantage of any developments in the law.

Fourteen constitutional scholars and former government officials[25]
wrote a response dated January 9, 2006 to the Department of Justice
letter, and transmitted it to Chairs and Ranking Members of the House and Senate
concluding that "the Bush administration's National Security Agency domestic
spying program... appears on its face to
violate existing law." [11]

An excerpt from their letter:

In conclusion, the DOJ letter fails to offer a plausible legal defense of
the NSA domestic spying program. If the Administration felt that FISA was
insufficient, the proper course was to seek legislative amendment, as it did
with other aspects of FISA in the Patriot Act, and as Congress expressly
contemplated when it enacted the wartime wiretap provision in FISA. One of the
crucial features of a constitutional democracy is that it is always open to
the President—or anyone else—to seek to change the law. But it is also beyond
dispute that, in such a democracy, the President cannot simply violate
criminal laws behind closed doors because he deems them obsolete or
impracticable.

Wiretapping without warrants and FISA emergency authorizations

On January 20, 2006, Senator Patrick
Leahy (D-VT), the ranking Democrat on the
Senate Judiciary Committee along with lone co-sponsor Senator Ted Kennedy (D-MA)
introduced S. Res. 350, a resolution "expressing the sense of the Senate that
Senate Joint Resolution 23 (107th Congress), as adopted by the Senate on September
14, 2001, and
subsequently enacted as the Authorization for Use of Military Force does not
authorize warrantless domestic surveillance of United States citizens." An
excerpt of the proposed Leahy-Kennedy resolution follows: [26][27]

Whereas Congress created the FISA court to review wiretapping applications
for domestic electronic surveillance to be conducted by any Federal
agency;

Whereas the Foreign Intelligence Surveillance Act of 1978
provides specific exceptions that allow the President to authorize warrantless
electronic surveillance for foreign intelligence purposes (1) in emergency
situations, provided an application for judicial approval from a FISA court is
made within 72 hours; and (2) within 15 calendar days following a declaration
of war by Congress;

Whereas the Foreign Intelligence Surveillance Act of 1978 has
been amended over time by Congress since the September 11, 2001, attacks on the
United States;

Whereas President George W. Bush has confirmed that his
administration engages in warrantless electronic surveillance of Americans
inside the United States and that he has authorized such warrantless
surveillance more than 30 times since September 11, 2001;

FISA expressly envisions a need for the President to conduct electronic
surveillance outside of its provisions when a later statute authorizes that
surveillance. The AUMF is such a statute.

The NSA activities come from the very center of the Commander-in-Chief
power, and it would raise serious constitutional issues if FISA were read to
allow Congress to interfere with the President’s well-recognized, inherent
constitutional authority. FISA can and should be read to avoid this.

Constitutional Issues

Separation of Powers and Unitary Executive theory

However, the authorization granted by President Bush to the NSA apparently
uses neither FISC approval nor the one-year foreign surveillance authority
granted by FISA. Instead, the administration argues that the power was granted
by the Constitution and by a statutory exemption, as is advocated by the Unitary Executive
theory using the interpretation of John Yooet al. He argues that the
President had the "inherent authority to conduct warrantless searches to obtain
foreign intelligence information."

Article II of the Constitution
of the United States of America makes the President "Commander in Chief of
the Army and Navy of the United States," and also mandates that he "shall take
Care that the Laws be faithfully executed", where "the Laws" refer to federal
statutes passed by Congress. Article I vests Congress with the sole authority
"To make Rules for the Government and Regulation of the land and naval Forces"
and "To make all Laws which shall be necessary and proper for carrying into
Execution the foregoing Powers, and all other Powers vested by this Constitution
in the Government of the United States, or in any Department or Officer
thereof." The president is an officer of the government of the United States, so
is subject to Congress's sole authority to make all laws for carrying the powers
of the president into execution, while the president is specifically charged
with the duty to take care that those laws be faithfully executed.

One court has said that the President's Commander-in-Chief authority extends
to the "independent authority to repel aggressive acts... without specific
congressional authorization" and without court review of the "level of force
selected." Campbell
v. Clinton, 203 F.3d 19 (D.C. Cir. 2000). Whether such declarations
apply to foreign intelligence has been examined by few courts. It is also
uncertain whether the allegation that surveillance involves foreign parties
suffices to extend law governing the president's military and foreign affairs
powers to cover domestic activities. The Supreme Court voiced this concern in
Hamdi v. Rumsfeld,
ruling that "a state of war is not a blank check for the President when it
comes to the rights of the Nation’s citizens."

The Congressional
Research Service, a nonpartisan research arm of the Library of Congress,
released a detailed report on January 5, 2006 regarding the NSA electronic
surveillance of communications, titled "Presidential Authority to Conduct
Warrantless Electronic Surveillance to Gather Foreign Intelligence
Information" and concluding that[28][29][30]

From the foregoing analysis, it appears unlikely that a court would hold
that Congress has expressly or impliedly authorized the NSA electronic
surveillance operations here under discussion, and it would likewise appear
that, to the extent that those surveillances fall within the definition of
“electronic surveillance” within the meaning of FISA or any activity regulated
under Title III, Congress intended to cover the entire field with these
statutes. To the extent that the NSA activity is not permitted by some reading
of Title III or FISA, it may represent an exercise of presidential power at
its lowest ebb, in which case exclusive presidential control is sustainable
only by “disabling Congress from acting upon the subject.” While courts have
generally accepted that the President has the power to conduct domestic
electronic surveillance within the United States inside the constraints of the
Fourth Amendment, no court has held squarely that the Constitution disables
the Congress from endeavoring to set limits on that power. To the contrary,
the Supreme Court has stated that Congress does indeed have power to regulate
domestic surveillance, and has not ruled on the extent to which Congress can
act with respect to electronic surveillance to collect foreign intelligence
information.

Duty to notify Congressional leaders and Congress

According to Peter J. Wallison, former White House Counsel to President Ronald
Reagan: "It is true, of course, that a president's failure to report to
Congress when he is required to do so by law is a serious matter, but in reality
the reporting requirement was a technicality that a President could not be
expected to know about. Lawyers and laws have always made distinctions between
violations of law that are malum prohibitum (wrong because prohibited)
and those that are malum in se (wrong in themselves); reasonable and
moral people are expected to know what is malum in se, but not
necessarily what is called malum prohibitum. While ignorance of the law
is no excuse, there is always a lighter punishment for violating a rule that is
malum prohibitum..." [31]

In regard to this program, a Gang of Eight (eight key
members of Congress, thirteen in this case between the 107th and 109th
Congressional Sessions) have been kept aware of it:

Notification of Congress is not directly relevant to the legality of the
wiretaps, but is important politically and for separation of
powers.

Attorney General Alberto Gonzales said
that there was no need to notify Congress because Congress had already
implicitly authorized the wiretaps with the AUMF. Gonzales says that the Bush
administration chose not to ask Congress for an amendment to FISA to allow such
wiretaps more explicitly, because Congress would have rejected the amendment.
"This is not a backdoor approach. We believe Congress has authorized this kind
of surveillance. We have had discussions with Congress in the past -- certain
members of Congress -- as to whether or not FISA could be amended to allow us to
adequately deal with this kind of threat, and we were advised that that would be
difficult, if not impossible." [32]

On January 19, the Department of
Justice sent a report to Capitol Hill outlining the legal basis for the National
Security Agency's activities that President Bush approved after the September
11, 2001
attacks.[33]
"These NSA activities are lawful in all respects," Gonzalez said in a letter to
Senate leaders in releasing the Justice Department's 42-page legal analysis[34].

The Congressional Research Service released another report on January
18, 2006,
"Statutory Procedures Under Which Congress Is To Be Informed of U.S.
Intelligence Activities, Including Covert Actions". The report found that
"Based upon publicly reported descriptions of the program, the NSA
surveillance program would appear to fall more closely under the definition of
an intelligence collection program, rather than qualify as a covert action
program as defined by statute..."[35],
and as such the Bush administration's refusal to brief any members of Congress
on the warrantless domestic spying program other than the so-called Gang of
Eight congressional leaders is "inconsistent with the law."[36]

If the NSA surveillance program were to considered an intelligence
collection program, (sic) limiting congressional notification of the NSA
program to the Gang of Eight, which some Members who were briefed about the
program contend, would appear to be inconsistent with the law, which requires
that the "congressional intelligence committees be kept fully and currently
informed of all intelligence activities," other than those involving covert
actions.

Fourth Amendment

In 2002, the United
States Foreign Intelligence Surveillance Court of Review (Court of Review)
met for the first time and issued an important foreign intelligence opinion,
In Re Sealed
Case No. 02-001. The Court of Review examined all the significant
appellate decisions. They noted all the Federal courts of appeal having looked
at the issue had concluded that there was such constitutional power.
Furthermore, if there was such power, "FISA could not encroach on the
president's constitutional power." However, In Re Sealed Case "[took] for
granted" that these cases are correct. Furthermore, professor Orin Kerr argues
that the part of In Re Sealed Case that dealt with FISA (rather than the
Fourth Amendment) was nonbinding dicta and that the argument does
not restrict Congress's power to regulate the executive in general.[37]

In In Re Sealed
Case No. 02-001 the United
States Foreign Intelligence Surveillance Court of Review[12] ruled,
"Even without taking into account the President’s inherent constitutional
authority to conduct warrantless foreign intelligence surveillance, we think the
procedures and government showings required under FISA, if they do not meet the
minimum Fourth Amendment warrant standards, certainly come close. We, therefore,
believe firmly, applying the balancing test drawn from Keith, that FISA as
amended is constitutional because the surveillances it authorizes are
reasonable."

The balancing test from Keith referred to above is a legal test that asks
whether the primary use of the warrantless search or tap to collect foreign
intelligence as per presidential authority or was the primary use of the
warrantless search or tap to gather evidence to use in a criminal trial.

There may be significant legal problems should information gathered under
President Bush's authorization be used in criminal trials. Ordinarily, the Fourth
Amendment protects the "right of the people to be secure... against
unreasonable searches and seizures". It continues that "no Warrants shall issue,
but upon probable cause". A number
of cases have found that authorization for surveillance under FISA did not
violate the Fourth Amendment. The Fourth Amendment is couched in reasonableness.
Courts have long recognized exceptions from the warrant requirement for "special
needs" outside "the normal need for law enforcement." It is not superfluous to
note, however, that the American Bar Association's position, a bipartisan
organization, as
stated by ABA president Michael Greco on the program DemocracyNow!
(7-26-06)[13] is
that:

"...the ABA's position is there's no reason to do drastic surgery on FISA.
That bill, enacted in 1978 to address abuses by the then administration of
spying on Americans, has some very important safeguards in it. It requires that,
before someone is spied on, that a warrant be gotten by the Justice Department
or by the prosecution or the prosecutors. Any amendment to FISA -- and some of
these bills, including the Specter bill and others, would eliminate that
requirement of a warrant, and in doing that, damage, fatal damage, would be done
to the Fourth Amendment of the U.S. Constitution. And we can't afford to have
one of our Bill of Rights so easily dismissed. The Fourth Amendment requires
that there be a warrant issued and that there be probable cause existing before
someone is spied on. Any bill that Congress enacts must continue to have those
two Fourth Amendment protections."

In In Re Sealed Case,
the court recognized foreign intelligence surveillance is different from
surveillance used for criminal prosecution. In addition, courts have rejected
arguments under the Due process or the Equal protection
clauses. This is not clearly the case for authorization given to the NSA by the
President. Other cases have allowed the use at criminal trial of evidence
obtained incident to authorized FISA.

Courts have only addressed this issue with respect to authorized surveillance
of foreign powers, their agents and those communications incident to such
surveillance. The courts have never specifically addressed whether it is
reasonable to use evidence gained from broad warrantless surveillance, which may
more broadly cover the communications of US persons. The National Security Act
of 1947[38]
requires Presidential findings for covert acts. SEC. 503. [50 U.S.C. 413b] (a)
(5) of that act states: "A finding may not authorize any action that would
violate the Constitution or any statute of the United States."

Authorization for Use of Military Force Resolution (AUMF)

Even assuming the President has no authority under Article II of the
Constitution, the administration has argued that the President's decision may
nevertheless be protectible under FISA. Following the 9/11 attacks,
Congress passed the Authorization
for Use of Military Force Against Terrorists(AUMF). Section 2(a) of the AUMF
authorized the President to "use all necessary... force against those nations,
organizations or persons he determines planned, authorized, committed or aided
the [9/11] terrorist attacks." However, critics have pointed out that according
to the canons of statutory construction, if a statute that governs a specific
question in great detail is apparently contradicted by a statute that may apply
only generally or vaguely, the detailed statute is the one that applies. In this
case, FISA provides a very detailed legal regime for domestic wiretapping, while
the AUMF makes no mention of wiretapping and can only be argued to apply to the
NSA warrantless surveillance program by a vague and generalized interpretation.
This indicates that the AUMF does not affect the applicability of FISA.

The administration argues instead that the authority to perform warrantless
domestic wiretapping was implicit in the authorization to use force in the AUMF.
FISA provides that intentional surveillance without authority is a felony "except as
authorized by statute." The argument, in this case, is that "all necessary
force" includes "foreign surveillance", and that the AUMF is therefore a statute
that otherwise authorizes the surveillance, satisfying FISA's conditions for not
constituting a felony. In Hamdi, the Supreme Court found that the
detention of both American and Foreign citizens were "clearly and unmistakably"
a "fundamental incident of waging war". The administration argues that this
suggests intelligence gathering would fall under this same rubric of incidents
of war. As such, if the AUMF would be understood as a "statutory" authority
under FISA, neither the criminal nor civil penalities would apply, at the very
least, to those individuals targeted by the AUMF.

On January 19, the Department of
Justice wrote a memorandum to the Chairs and Ranking members of the House and
Senate, titled "Legal Authorities Supporting the Activities of the National
Security Agency Described by the President":

For the foregoing reasons, the President—in light of the broad authority to
use military force in response to the attacks of September 11 and to
prevent further catastrophic attack expressly conferred on the President by
the Constitution and confirmed and supplemented by Congress in the AUMF—has
legal authority to authorize the NSA to conduct the signals intelligence
activities he has described. Those activities are authorized by the
Constitution and by statute, and they violate neither FISA nor the Fourth
Amendment.

On February 2, 2006 the same 14 constitutional
scholars and former government officials wrote a response to the Department of
Justice's January 19, transmitting it
to the Chairs and Ranking members of the House:

In sum, we remain as unpersuaded by the DOJ's 42-page attempt to find
authority for the NSA spying program as we were of its initial five-page
version. The DOJ's more extended discussion only reaffirms our initial
conclusion, because it makes clear that to find this program statutorily
authorized would requires rewriting not only clear specific federal
legislation, but major aspects of constitutional doctrine. Accordingly, we
continue to believe that the administration has failed to offer any plausible
legal justification for the NSA program.

Classified information

Leaking of classified information

... whoever knowingly and willfully communicates, furnishes, transmits, or
otherwise makes available to an unauthorized person, [including by
publication,] classified
information [relating to] the communication intelligence activities of the
United States or any foreign government, [shall be fined or imprisoned for up
to ten years.]

This statute is not limited in application to only federal government
employees. However, the Code of Federal
Regulations suggests the statute may apply primarily to the "[c]ommunication
of classified information by Government officer or employee". 50 USCS §783
(2005).

There is a statutory
procedure for a "whistleblower" in the intelligence community to report
concerns with the propriety of a secret program, The Intelligence
Community Whistleblower Protection Act of 1998, Pub. L. 105-272, Title
VII, 112 Stat. 2413 (1998). Essentially the Act provides for disclosure to the
agency Inspector General, and if the result of that is unsatisfactory, appeal to
the Congressional Intelligence Committees. A former official of the NSA, Russ Tice, has asked to testify
under the terms of the Intelligence Community Whistleblower Protection Act, in
order to provide information to these committees about "highly classified
Special Access Programs, or SAPs, that were improperly carried out by both the
NSA and the Defense
Intelligence Agency." (Washington
Times)

Executive Order
13292, which sets up the U.S. security classification system, provides
(Sec 1.7) that "[i]n no case shall information be classified in order to conceal
violations of law". Given doubts about the legality of the overall program, the
classification of its existence may not have been valid under E.O. 13292.

Publication of classified information

It is unlikely that the New York Times could be held liable for publishing
its article under established Supreme Court precedent. In Bartnicki v.
Vopper, 532 U.S. 514, the Supreme Court held that the First Amendment
precluded liability for a media defendant for publication of illegally obtained
communications that the media defendant itself did nothing illegal to obtain if
the topic involves a public controversy. The high court in Bartnicki
accepted due to the suit's procedural position, that interception of information
which was ultimately broadcast by the defendant radio station was initially
illegal (in violation of ECPA), but nonetheless gave the radio station a pass
because it did nothing itself illegal to obtain the information.

Nor could the government have prevented the publication of the classified
information by obtaining an injunction. In the Pentagon Papers case,
(New York Times
Co. v. U.S. (403 US 713)), the Supreme Court held in a 6-3 decision that
injunctions against the New York Times publication of classified information
(United States-Vietnam Relations, 1945-1967: A Study Prepared by The
Department of Defense, a 47 volume, 7,000-page, top-secretUnited
States Department of Defense history of the United States' political
and military involvement in the Vietnam War from 1945 to
1971) were unconstitutional prior restraints and that the government had not met
the heavy burden of proof required
for prior restraint.

The 1917
Espionage Act as amended in 1950 forbids unauthorized possession of
classified information. Although the Justice Department as a matter of law sees
no exemption for the press, as a matter of fact it has refrained from
prosecuting:

"A prosecution under the espionage laws of an actual member of the
press for publishing classified information leaked to it by a government
source would raise legitimate and serious issues and would not be undertaken
lightly, indeed, the fact that there has never been such a prosecution speaks
for itself."

On the other hand, Bill Keller, New York Times Executive Editor, told the
Washington Post,

"There's a tone of gleeful relish in the way they talk about dragging
reporters before grand juries, their appetite for withholding information, and
the hints that reporters who look too hard into the public's business risk
being branded traitors."[39]

Admissibility

It is a rule of law that evidence obtained without lawful authority, or
improperly, may not be used to prosecute a person. This is a fundamental
safeguard against abuse of power. According to unnamed officials, in other
surveillance cases such as Faris, the "Brooklyn Bridge" plotter:

"[S]enior Justice Department officials worried what would happen if the
N.S.A. picked up information that needed to be presented in court. The
government would then either have to disclose the N.S.A. program or mislead a
criminal court about how it had gotten the information." [14]

According to another source:

"A complaint from Judge Colleen
Kollar-Kotelly, the federal judge who oversees the Federal Intelligence
Surveillance Court, helped spur the suspension, officials said. The judge
questioned whether information obtained under the N.S.A. program was being
improperly used as the basis for F.I.S.A. wiretap warrant requests from the
Justice Department, according to senior government officials. While not
knowing all the details of the exchange, several government lawyers said there
appeared to be concerns that the Justice Department, by trying to shield the
existence of the N.S.A. program, was in danger of misleading the court about
the origins of the information cited to justify the warrants."

"One official familiar with the episode said the judge insisted to Justice
Department lawyers at one point that any material gathered under the special
N.S.A. program not be used in seeking wiretap warrants from her court. Judge
Kollar-Kotelly did not return calls for comment." [15]

Responses

Administration response to press stories

During President George Bush's weekly
Saturday morning radio broadcast onDecember 17, 2005, live that morning from The
Roosevelt Room in the White House, he addressed the growing controversy
directly, stating that he was using his authority as President, as Commander in Chief of
the US military, and such authority as Congress had given him, to
intercept international communications of "people with known links to al Qaeda
and related terrorist organizations". Within the speech he also added that
before intercepting any communications, "the government must have information
that establishes a clear link to these terrorist networks." He stated that
communications interception was a tool against terrorism, and, had the right
communications been intercepted, perhaps the 9/11 attacks could have been
prevented. The NSA program was re-authorized every 45 days, having at that time
been reauthorized "more than 30 times". It was also reviewed by the Justice Department
and top NSA lawyers "including NSA's general counsel and inspector general", and
Congress leaders had been briefed "more than a dozen times". [16]

"Secondly, there are such things as roving wiretaps. Now, by the way,
any time you hear the United States government talking about wiretap, it
requires -- a wiretap requires a court order. Nothing has changed, by the way.
When we're talking about chasing down terrorists, we're talking about getting
a court order before we do so. It's important for our fellow citizens to
understand, when you think Patriot Act, constitutional guarantees are in place
when it comes to doing what is necessary to protect our homeland, because we
value the Constitution." [40]

And again, during a speech[41]
at Kansas State
University on January 23, 2006, President Bush mentioned the
program, and added that it was "what I would call a terrorist surveillance
program", intended to "best... use information to protect the American people",
and that:

"What I'm talking about is the intercept of certain communications
emanating between somebody inside the United States and outside the United
States; and one of the numbers would be reasonably suspected to be an al Qaeda
link or affiliate. In other words, we have ways to determine whether or not
someone can be an al Qaeda affiliate or al Qaeda. And if they're making a
phone call in the United States, it seems like to me we want to know why."

"This is a -- I repeat to you, even though you hear words, "domestic
spying," these are not phone calls within the United States. It's a phone call
of an al Qaeda, known al Qaeda suspect, making a phone call into the United
States [...] I told you it's a different kind of war with a different kind of
enemy. If they're making phone calls into the United States, we need to know
why -- to protect you."

During a speech[42]
in New York on January 19, 2006 Vice President Dick Cheney
commented on the controversy, stating that a "vital requirement in the war on
terror is that we use whatever means are appropriate to try to find out the
intentions of the enemy," that complacency towards further attack was dangerous,
and that the lack of another major attack since 2001 was due to "round the clock
efforts" and "decisive policies", and "more than luck." He stated that:

"[B]ecause you frequently hear this called a 'domestic surveillance
program.' It is not. We are talking about international communications, one
end of which we have reason to believe is related to al Qaeda or to terrorist
networks affiliated with al Qaeda.. a wartime measure, limited in scope to
surveillance associated with terrorists, and conducted in a way that
safeguards the civil liberties of our people."

In a press conference on December 19 held by both
Attorney General Alberto Gonzales and
General Michael Hayden, the
Principal Deputy Director for National Intelligence, General Hayden claimed,
"This program has been successful in detecting and preventing attacks inside the
United States." He stated that even an emergency authorization under FISA
required marshaling arguments and "looping paperwork around". Hayden also
implied that decisions on whom to intercept under the wiretapping program were
being made on the spot in real time by a shift
supervisor and another person, but refused to discuss details of the specific
requirements for speed. [43]

The United
States Department of Justice sent a 42 page white paper to Congress on
January
19, 2006 stating
the grounds upon which it was felt the NSA program was entirely legal, which
restates and elaborates on reasoning Attorney General Alberto Gonzales used
at the December press conference when the legality of the program was
questioned. [45]
Gonzales spoke further at Georgetown
UniversityJanuary 24, claiming that
Congress had given the President the authority to order the surveillance without
going through the courts, and that normal procedures to order surveillance were
too slow and cumbersome. [46]

General Hayden stressed the NSA respect for the Fourth Amendment, stating at
the National Press Club on January 23, 2006 that, "Had this program been
in effect prior to 9/11, it is my professional judgment that we would have
detected some of the 9/11 al Qaeda operatives in the United States, and we would
have identified them as such." [47]

Some sources state that despite the NSA program, "[t]he agency ... still
seeks warrants to monitor entirely domestic communications." [48]
An article from February 5, 2006 in the
Washington Post reported that the program had netted few suspects. [49]

In a speech on January 25, 2006, Bush said, "I have the
authority, both from the Constitution and the Congress, to undertake this vital
program," [50]
telling the House Republican
Caucus at their February 10 conference in
Maryland that "I wake up every morning thinking about a future attack, and
therefore, a lot of my thinking, and a lot of the decisions I make are based
upon the attack that hurt us." [51]

President Bush reacted to a May 10 domestic call records
article in USA Today by restating his
position, that it is "not mining or trolling through the personal lives of
millions of innocent Americans." [52]

We respectfully request that the Select Committee on Intelligence and the
Committee on the Judiciary, which share jurisdiction and oversight of this
issue, jointly undertake an inquiry into the facts and law surrounding these
allegations. The overlapping jurisdiction of these two Committees is
particularly critical where civil liberties and the rule of law hang in the
balance.

On Saturday the President stated that he "authorized the
National Security Agency, consistent with U.S. law and the Constitution, to
intercept the international communications of people with known links to al
Qaeda and related terrorist organizations." It is critical that Congress
determine, as quickly as possible, exactly what collection activities were
authorized, what were actually undertaken, how many names and numbers were
involved over what period, and what was the asserted legal authority for such
activities. In sum, we must determine the facts.

On January 25, 2006, presenting resolution 350
(the "sense of the senate" about AUMF), senators Leahy (D-VT) and Kennedy
noted[54]
Justice O'Connor's statement that even war "is not a blank check for the
President when it comes to the rights of the Nation's citizens," and that when
Senate opened on September 12, 2001 it was stated:

"If we abandon our democracy to battle them, they win... We will maintain
our democracy... we will not lose our commitment to the rule of law, no matter
how much the provocation, because that rule of law has protected us throughout
the centuries. It has created our democracy. It has made us what we are in
history."

They went on to observe that the DoJ document, prepared by order of the White
House, was a "manipulation of the law" similar to other "overreaching" and
"twisted interpretations" in recent times, [55]
and that FBI sources have stated that "much of what was forwarded to them to
investigate was worthless and led to dead ends" – a "dangerous diversion of our
investigative resources away from those who pose real threats, while precious
time and effort is devoted to looking into the lives of law-abiding
Americans."

Leahy and Kennedy also observed that Attorney General Gonzales "admitted" at
a press conference on December 19, 2005, that the Administration did
not seek to amend FISA to authorize the NSA spying program because it was
advised that "it was not something we could likely get," and that the ongoing 45
day reapproval by the Attorney General, the White House Counsel and the
Inspector General of the National Security Agency was "not good enough" because
each of these is an executive branch appointees who in turn report directly to
the Executive. Finally they concluded by looking at the context within which
FISA was legislated:

"Congress spent seven years considering and enacting the Foreign
Intelligence Surveillance Act. It was not a hastily conceived idea. We had
broad agreement that both Congressional oversight and judicial oversight were
fundamental--even during emergencies or times of war, which is why we
established a secret court to expedite the review of sensitive applications
from the government. Now, the administration has made a unilateral decision
that Congressional and judicial oversight can be discarded, in spite of what
the law obviously requires."

govtrack.us entry
on sr109-350 states that "Introduced Senate bills go first to Senate
committees that consider whether the bill should be presented to the Senate as a
whole. The majority of bills never make it out of committee."

Senate Judiciary Committee Chairman Arlen Specter, in a three-page letter
dated June 7,
2006 to Vice
President Dick Cheney, to prompt the Administration to provide: input on his
proposed legislation, briefings to his committee about the program, and more
cooperation with Congressional oversight. Specter also wrote about the Vice
President lobbying the other Republican members of the Judiciary Committee about
compelling telephone companies to testify about classified information. Specter
wrote: "When some of the companies requested subpoenas so they would not be
volunteers, we responded that we would honor that request. Later, the companies
indicated that if the hearing were closed to the public, they would not need
subpoenas. I then sought Committee approval, which is necessary under our rules,
to have a closed session to protect the confidentiality of any classified
information and scheduled a Judiciary Committee Executive Session for 2:30 P.M.
yesterday to get that approval. I was advised yesterday that you had called
Republican members of the Judiciary Committee lobbying them to oppose any
Judiciary Committee hearing, even a closed one, with the telephone companies. I
was further advised that you told those Republican members that the telephone
companies had been instructed not to provide any information to the Committee as
they were prohibited from disclosing classified information." Excerpts from
Specter's letter follows: [56]

...the Administration's continuing position on the NSA electronic
surveillance program rejects the historical constitutional practice of
judicial approval of warrants before wiretapping and denigrates the
constitutional authority and responsibility of the Congress and specifically
the Judiciary Committee to conduct oversight on constitutional
issues.

On March 16, 2006, I introduced legislation to
authorize the Foreign Intelligence Surveillance Court to rule on the
constitutionality of the Administration's electronic surveillance program.
Expert witnesses, including four former judges of the FISA Court, supported
the legislation as an effective way to preserve the secrecy of the program and
protect civil rights. The FISA Court has an unblemished record for keeping
secrets and it has the obvious expertise to rule on the issue. The FISA Court
judges and other experts concluded that the legislation satisfied the
case-in-controversy requirement and was not a prohibited advisory opinion.
Notwithstanding my repeated efforts to get the Administration's position on
this legislation, I have been unable to get any response, including a
"no".

The Administration's obligation to provide sufficient information
to the Judiciary Committee to allow the Committee to perform its
constitutional oversight is not satisfied by the briefings to the
Congressional Intelligence Committees...

Foreign Intelligence Surveillance Court developments

U.S. District Judge Dee Benson of Utah, also of
the FISC, stated that he was unclear on why the FISC's emergency authority would
not meet the administration's stated "need to move quickly." He and fellow
judges on the court attended a briefing in January, called by presiding Judge Colleen
Kollar-Kotelly. [57][58]

Reportedly, the court was also concerned about "whether the administration
had misled their court about its sources of information on possible terrorism
suspects . . . [as this] could taint the integrity of the court's work." [59]
In part to address this problem, several commentators have raised the issue of
whether, regardless how one feels about the authorization issue, FISA
needs to be amended to address specific foreign intelligence needs, current
technology developments, and advanced technical methods of intelligence
gathering, in particular to provide for programmatic approvals of general or
automated surveillance of foreign terrorist communications, the results of which
could then legally be used as predicate for FISA warrants. For example, see
Fixing Surveillance[60].
See also Why We Listen[61],
The Eavesdropping Debate We Should be Having[62];
A New Surveillance Act[63];
and A historical solution to the Bush spying issue[64]
(the latter setting out a historical perspective on the need for programmatic
approval in foreign intelligence surveillance generally). And see Whispering
Wires and Warrantless Wiretaps[65]
(discussing how FISA is inadequate to address certain technology
developments).

The Administration has contended that amendment is unnecessary because they
believe that the President had inherent authority to approve the NSA program and
that the process of amending FISA might require disclosure of classified
information that could harm national security. In response, Senator Leahy said,
"If you do not even attempt to persuade Congress to amend the law, you must
abide by the law as written." [66]
As discussed below, however, it is not clear that a President is restricted to
following statutory procedures in cases where he is exercising his inherent
authority.

Competing proposals to authorize the NSA program subject to Congressional or
FISA court oversight have been proposed and are being discussed. For example,
Senator Mike DeWine (R-Ohio) has
introduced a proposal that would approve the NSA program subject to oversight by
special congressional committees and Senator Arlen Spector (R-Pa.) has
put forward one that would require FISA court approval every 45 days to continue
the program. The White House has indicated it prefers the DeWine approach but
Senator Pat Roberts (R-Ka.),
chairman of the Senate Intelligence Committee, has indicated that some FISA
court involvement is probably necessary for Congressional support. [67]

Title VII of the Foreign
Intelligence Surveillance Act of 1978, as amended by section 6, is amended by
adding at the end the following:

`SEC. 706. EMERGENCY
AUTHORIZATION.

`Notwithstanding any other provision of law, the
President, through the Attorney General, may authorize electronic surveillance
without a court order under this title to, acquire foreign intelligence
information for a period not to exceed 45 days following a declaration of war
by Congress.'.

Mike DeWine's proposed bill

Senator Mike DeWine (R-OH)
introduced S.2455 Terrorist Surveillance Act of 2006, (announcement)
(text) "a bill to
provide in statute for the conduct of electronic surveillance of suspected
terrorists for the purposes of protecting the American people, the Nation, and
its interests from terrorist attack while ensuring that the civil liberties of
United States citizens are safeguarded, and for other purposes." DeWine's bill
also mentioned criminal penalties for unauthorized leaking of surveillance
programs:

`(a) In General- Any covered person who intentionally discloses
information identifying or describing, whether in whole or in part,
electronic surveillance authorized by section 2 of the Terrorist
Surveillance Act of 2006, or any other information relating to the Terrorist
Surveillance Program under that Act or any program of surveillance under the
Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.) to
any individual not authorized to receive such information shall be fined not
more than $1,000,000, imprisoned not more than 15 years, or
both.

`(b) Definition- In this section, the term `covered person' means any
person authorized to receive information under the Terrorist Surveillance
Act of 2006, or the Foreign Intelligence Surveillance Act of
1978.'.

(b) Clerical Amendment- The table of sections at the beginning of such
chapter is amended by inserting after the item relating to section 798A the
following new item:

Third-party legal analysis

Arguing that the program is legal or probably legal

John
Eastman, Chapman Law professor and Director of the Claremont
Institute Center for Constitutional Jurisprudence, wrote in a letter to
House Judiciary Committee Chaiman James Sensenbrenner on January
27, 2006,
that the Congressional Research Service's assessment was institutionally
biased against the President, ignored key constitutional text and Supreme
Court precedent, and that the case made by the Department of Justice in
support of the President's authority to conduct surveillance of enemy
communications in time of war was compelling.[68]

Arguing that the program is illegal or probably illegal

On February 13, 2006, the American Bar
Association (ABA) denounced the warrantless domestic surveillance
program, accusing the President of exceeding his powers under the
Constitution. The ABA also formulated a policy opposing any future
government use of electronic surveillance in the United States for foreign
intelligence purposes without obtaining warrants from a special secret court
as required by the 1978 Foreign Intelligence Surveillance Act.[17]

Professor Peter
Swire, the C. William O’Neill Professor of Law at the Ohio State
University and Visiting Senior Fellow at the Center for
American Progress, wrote a detailed "Legal FAQs on NSA Wiretaps"
concluding that "[b]ased on the facts available to date, the wiretap program
appears to be clearly illegal."[69]
Prof. Swire has previously written a very detailed history and analysis of
the Foreign Intelligence Surveillance Act, published in Volume 72 of the
George Washington Law Review, at 1306 (2004) and previously chaired a White
House Working Group, including the intelligence agencies, on how to update
electronic surveillance law for the Internet Age.

a pretty straightforward case where the president is acting
illegally... When Congress speaks on questions that are domestic in
nature, I really can't think of a situation where the president has
successfully asserted a constitutional power to supersede that... This is
domestic surveillance over American citizens for whom there is no evidence
or proof that they are involved in any illegal activity, and it is in
contravention of a statute of Congress specifically designed to prevent
this.

Mr. Reinstein asserted that the broad consensus among legal scholars and
national security experts is similar to his own analysis, and he predicted
that the courts will rule that the program is unconstitutional. New York
Times

Edward Lazarus, author, law
professor and former U.S. Supreme Court clerk and federal prosecutor, has
argued in articles such as "Warrantless Wiretapping: Why It Seriously
Imperils the Separation of Powers, And Continues the Executive's Sapping of
Power From Congress and the Courts", that "Unilateral executive power is
tyranny, plain and simple".[70]

Orin S. Kerr, a
professor at The
George Washington University Law School, prominent blogger and scholar
of the legal framework of electronic surveillance has opined that the issues
are complex, but that after his first analysis he concluded that the
wiretapping probably does not infringe on Fourth Amendment constitutional
rights, though it probably does violate FISA. President Bush has maintained
he acted within "legal authority derived from the constitution" and that
Congress "granted [him] additional authority to use military force against
al Qaeda".[71]
However, while the President may argue that the necessary statutory
authority to override FISA's warrant provisions is provided by the
authorization to use "all necessary force" in the employment of military
resources to protect the security of the United States, and that the use of
wiretapping is a qualifying use of force (under the terms of the
authorization for the use of military force against al-Qaida as found in
Senate Joint Resolution 23, 2001), Kerr believes that this justification is
ultimately unpersuasive, as is the argument that the President's power as
the Commander-in-Chief (as derived from Article
Two of the United States Constitution) provides him with the necessary
constitutional authority to circumvent FISA during a time of war.[72]
Kerr cautiously estimates that about eight of the nine Supreme Court
justices would agree with him that Article Two cannot trump statutes like
FISA.[73]

According to a report in The Boston Globe on February 2, 2006 three law professors, David
Cole (Georgetown
University), Richard Epstein (University of
Chicago), and Philip
Heymann (Harvard), said that what Bush is doing is
unprecedented. Bush's claim that other presidents asserted that wartime
powers supersede an act of Congress, "is either intentionally misleading or
downright false," Cole said. He said Bush is misstating the In Re
Sealed Case No. 02-001 ruling which supported Congressional regulation
of surveillance. Epstein believes the United
States Supreme Court would reject the Administration's argument and
said, "I find every bit of this legal argument disingenuous...The
president's position is essentially that (Congress) is
not doing the right thing, so I'm going to act on my own." Professor
Heymann, a former deputy US attorney general said, "The bottom line is, I
know of no electronic surveillance for intelligence purposes since the Foreign
Intelligence Surveillance Act was passed that was not done under the . .
. statute." [74]

In conclusion, the DOJ letter fails to offer a plausible legal defense
of the NSA domestic spying program. If the administration felt that FISA
was insufficient, the proper course was to seek legislative amendment, as
it did with other aspects of FISA in the Patriot Act, and as Congress
expressly contemplated when it enacted the wartime wiretap provision in
FISA. One of the crucial features of a constitutional democracy is that it
is always open to the President—or anyone else—to seek to change the law.
But it is also beyond dispute that, in such a democracy, the President
cannot simply violate criminal laws behind closed doors because he deems
them obsolete or impracticable.

Ultimately, though, the entire legal debate in the NSA scandal comes
down to these few, very clear and straightforward facts: Congress passed a
law in 1978 making it a criminal offense to eavesdrop on Americans
without judicial oversight. Nobody of any significance ever claimed that
that law was unconstitutional. The Administration not only never claimed
it was unconstitutional, but Bush expressly asked for changes to the law
in the aftermath of 9/11, thereafter praised the law, and misled Congress
and the American people into believing that they were complying with the
law. In reality, the Administration was secretly breaking the law, and
then pleaded with The New York Times not to reveal this. Once
caught, the Administration claimed it has the right to break the law and
will continue to do so.

After the Supreme Court's judgement in Hamdan v.
Rumsfeld, Greenwald wrote: "The administration’s theories to justify the
President’s lawbreaking have always been frivolous. But for those pretending
not to recognize that fact, the Supreme Court has so ruled."[20]

George W. Bush and US Attorney General Alberto Gonzales claim that
domestic spying in manifest violation of the Foreign Intelligence
Surveillance Act (FISA) was authorized by Congress in broad language in
the 2001 Authorization for Use of Military Force (AUMF) regarding persons
responsible for the 9/11 attacks. Similar claims have been made in a
December 22 letter from Assistant Attorney General William Moschella to
the leaders of the House and Senate Intelligence Committees. The claims
are patently false...

Moreover, any so-called inherent presidential authority to spy on
Americans at home (perhaps of the kind denounced in Youngstown (1952) and
which no strict constructionist should pretend to recognize), has been
clearly limited in the FISA in 18 U.S.C. § 2511(2)(f) and 50 U.S.C. §
1809(a)(1), as supplemented by the criminal provisions in 18 U.S.C. §
2511(1).

William
C. Banks, Professor of Law and Director of the Institute for National
Security and Counterterrorism at Syracuse
University argued that the NSA program is unconstitutional, writing that
"in the unlikely event that legal authority for the NSA program can be
found, this domestic spying violates the Fourth Amendment."[22]

Legal challenges

The NSA warrantless spying program has included extraordinary obstacles to
open litigation. Alberto Gonzales has admitted that the NSA program includes
spying on attorney-client communications [75],
and one of the attorneys for the Center for
Constitutional Rights has pointed out that the administration is routinely
arguing that its court filings in defense of the NSA program are so secret they
cannot be served on the defense counsel for rebuttal, a procedure that is
unprecedented in the history of American justice yet some courts are nonetheless
accepting.[76]

BellSouth Corp and Verizon Telecommunications are now facing lawsuits
seeking billions of dollars in damages for illegally turning over personal
calling records to the government. The damages amount to over $1,000 per
person affected. Consumers can sue their phone service provider under
communications privacy legislation that dates back to the 1930s. Relevant laws
include the Communications Act,
first passed in 1934, and a variety of provisions of the Electronic
Communications and Privacy Act, including the Stored
Communications Act, passed in 1986.[83]

Warrantless wiretapping by NSA ruled unconstitutional

On August 17, 2006 U.S. District Court Judge Anna Diggs Taylor
ruled in ACLU v. NSA that the
warrantless wiretapping program is unconstitutional and ordered that it be
stopped immediately, on the grounds that such activities are violations of the
rights to free speech and privacy. [84]
In her ruling,[85]
she wrote:

The President of the United States, a creature of the same
Constitution which gave us these Amendments, has undisputedly violated the
Fourth in failing to procure judicial orders as required by FISA, and
accordingly has violated the First Amendment Rights of these Plaintiffs as
well.

The Justice Department responded to the ruling by saying they would
appeal.

^[2]The
relevant quote is "Now, in terms of legal authorities, the Foreign
Intelligence Surveillance Act provides -- requires a court order before
engaging in this kind of surveillance that I've just discussed and the
President announced on Saturday, unless there is somehow -- there is -- unless
otherwise authorized by statute or by Congress. That's what the law requires."

^
The law defines as a felony instances in which there
is "substantial likelihood that the surveillance will acquire the contents of
any communication to which a United States person is a party." [3]

^
Cites for this speech and following paragraphs are taken from the Library of
Congress records, pages S137 - S139. Online versions: p.137,
p.138,
p.139
(PDF).

^
Examples cited included: The 'torture' statute (later withdrawn), and several
other breaches of usual legal process, and that previous loosened restrictions
on the FBI had also been reportedly abused to "monitor Quakers in Florida and
possibly Vermont", but that when asked for details the Secretary of Defense
had "refused" to provide answers.